State v. Ballew

440 S.E.2d 565, 113 N.C. App. 674, 1994 N.C. App. LEXIS 224
CourtCourt of Appeals of North Carolina
DecidedMarch 1, 1994
Docket9327SC518
StatusPublished
Cited by4 cases

This text of 440 S.E.2d 565 (State v. Ballew) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ballew, 440 S.E.2d 565, 113 N.C. App. 674, 1994 N.C. App. LEXIS 224 (N.C. Ct. App. 1994).

Opinions

LEWIS, Judge.

On 3 February 1993, defendant was convicted, after a jury trial, of two counts of first-degree rape and one count of sexual activity by a substitute parent. He received a sentence of life imprisonment for each of the rape convictions and a sentence of fifteen years imprisonment for the sexual activity by a substitute parent conviction, all sentences to run consecutively. From these judgments and commitments defendant appeals.

Defendant’s convictions arose out of the following facts. The victims, C. and L., were twelve and thirteen years old, respectively, when their mother married defendant in May of 1991. The victims and their mother then moved in with defendant and defendant’s fifteen year-old son. Over the next seven months, defendant repeatedly engaged in sexual intercourse with each of the two girls. The three instances charged occurred as follows. On 25 October 1991, C.’s mother and sister were Christmas shopping, while defendant and C. were home alone. The two went to the back bedroom where defendant asked C. if she wanted to engage in sex. Upon her refusal defendant forced her to have sexual intercourse with him.

On 5 November 1991, L. did not go to school because she had poison ivy. Defendant was the only other person at home. [677]*677Defendant entered L.’s bedroom twice and asked her if she wanted to have sex with him. L. responded both times that she did not. Defendant then engaged in sexual intercourse with her against her will.

On the afternoon of 31 December 1991, C. and defendant were again home alone. Defendant called C. to the back bedroom where he asked her several times if she would engage in sexual intercourse with him, and each time, C. told him no. Defendant then forced her to engage in sexual intercourse with him. They then heard C.’s mother return from the store. Defendant told C. to pull up her pants and her underwear, and the two of them went into the kitchen where defendant told C.’s mother that she had forgotten to buy several items. When C.’s mother left the house, defendant again forced C. to have sex with him.

A week later, on 6 January 1992, C. first told her mother about the incidents. The girls’ mother and their aunt then reported the matter to the police. Subsequently, the girls were seen by social workers and physicians. Gynecological exams of the girls were consistent with exams of girls who had had sexual intercourse, and C. tested positive for a sexually transmitted disease.

At trial, after the two girls testified, the State called defendant’s natural daughter, A., to the stand. The State sought to elicit testimony regarding sexual contact between defendant and A. After a few preliminary questions, the following exchange which is the subject of defendant’s first assignment of error, took place:

Prosecutor: At the time you were twelve or thirteen years of age were you subjected to any —
Defense Counsel: (Interrupting) — Objection.
The Court: Sustained.
Prosecutor: What, if anything —
The Court: (Interrupting) — Members of the jury, do not take any inference from the question or partial question that was asked by the district attorney in your jury deliberations.
Prosecutor: What, if anything, did your father do to you—
Defense Counsel: (Interrupting) — Objection.
[678]*678Prosecutor: (Continuing) — while you were living in the home —
The Court: (Interrupting) — Sustained. Members of the jury, let me ask you to step to the jury room. Do not discuss the case.

During the voir dire that followed, the judge ruled that the questions of the prosecutor were improper, and he again sustained defendant’s objections. The judge then admonished the prosecutor to refrain from the improper line of questioning. Defendant moved for a mistrial, and the judge denied the motion. When the jury returned, the judge instructed:

Members of the jury, the Court instructs you that evidence does not come from a question that is asked, and I instruct you that the last question that was asked you should not take any inference from the question that was asked in any form or fashion in your jury deliberations. So do not take any inference therefrom in regard to these matters. . . .

Defendant argues that the prosecutor’s question planted in the minds of the jurors the inference that defendant sexually abused his natural daughter, and that this improper question warranted a mistrial.

“A mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under the law.” State v. Chapman, 294 N.C. 407, 417-18, 241 S.E.2d 667, 674 (1978). Further, the trial judge’s ruling on a motion for mistrial is not reviewable unless there is a showing of gross abuse of discretion. State v. Elliott, 64 N.C. App. 525, 527, 307 S.E.2d 844, 845 (1983).

In State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972), the defendant made a motion for mistrial under similar circumstances, and the motion was denied. The Supreme Court held that

the [trial] court’s prompt action in sustaining defendant’s objection to the question and in excusing the jury and instructing the solicitor not to ask further questions along that line, coupled with the court’s specific instruction to the jury not to consider the question but to strike it from their mind, was sufficient to remove any possibility of error.

Id. at 671, 187 S.E.2d at 97.

[679]*679In the instant case, the trial judge sustained defendant’s objection, instructed the jury not to take any inference from the question or partial question, excused the jury, and admonished the prosecutor to refrain from the particular line of questioning. Accordingly, we find no gross abuse of discretion in the trial judge’s denial of defendant’s motion for a mistrial. The trial judge could hardly have been more timely or correct in his reaction.

Defendant further argues that the trial judge’s second cautionary instruction was error, as it drew particular attention to the prosecutor’s improper question. However, before the judge gave the second instruction, and while the jury was still out of the courtroom, the judge twice informed counsel that he would give a second cautionary instruction, and defense counsel did not object. Likewise, when the judge gave the instruction, defense counsel did not object. Thus, defendant has failed to preserve the issue for appellate review. N.C.R. App. P. 10(b).

As his third assignment of error, defendant argues that the trial court erred in denying his motion for a mistrial made after the court allowed the State to introduce into evidence statements of the two victims. Defendant contends that the statements were inadmissible because they did not corroborate the earlier testimony of the girls.

Prior consistent statements of a witness are admissible if they corroborate the testimony of the witness. State v. Ramey, 318 N.C.

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State v. Ballew
440 S.E.2d 565 (Court of Appeals of North Carolina, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
440 S.E.2d 565, 113 N.C. App. 674, 1994 N.C. App. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ballew-ncctapp-1994.